These are busy times for U.S. law professors. I study the constitutional law of the presidency—impeachment, pardons, the 25th Amendment, and the like. Reporters call and email frequently, asking for information or a quote about the latest Trump-related hullabaloo.
For a republic to thrive, its populace needs a solid grasp of civics. Ideally, journalists and experts will combine to spread knowledge and squash misinformation. By and large they do. But sometimes I worry about how well the “media-academic complex” performs these functions when highly technical issues are in the news.
My worries spiked on December 3, when Republican Representative Matt Gaetz suggested that lawmakers impeach Barack Obama rather than Donald Trump. In response to the public’s startled reaction, Gaetz doubled down, tweeting that yes, ex-presidents really can be impeached.
As luck would have it, I published a lengthy law review article in 2001 on the impeachability of former officials. More recently, I devoted a chapter to the question in my 2012 book, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies. Nobody else has published any formal scholarship on this question. When it comes to “late impeachment,” I’m the guy.
But while multiple media outlets reported on Gaetz’s weird idea, not a single reporter contacted me. Late impeachment is not something law students learn about in their classes, and it takes more than a quick glance at the Constitution to sort it out. It also takes more than a web search to find me as the leading authority. I had dominated search results for all those years when nobody was talking about the issue. But Gaetz’s comment quickly banished me to the barren wasteland that is the second page of Google results.
Most of the professors who were consulted—experts on impeachment more generally—said things that were mostly correct. And the right answers to the key questions emerged in the lay press: yes, ex-presidents can be impeached; no, it almost never makes sense to do so. But most of the news stories contained basic technical errors and omitted key points.
So far, no doubt, everything you’re reading here sounds like it should fall under the headline “temperamental professor believes himself under-appreciated.” But the issue is broader than my own academic ego. And there’s a mismatch on the flip side, too, because in some cases, I get attention from journalists that isn’t really warranted. As I wrote at the outset, reporters contact me all the time. Sometimes, they ask about my areas of specialty. But often, they ask about things of which I have only a glib understanding and no special expertise.
It typically plays out like this:
Reporter: Hi. I’m writing a story about [legal issue X] on a tight deadline, and I found your name on a list of constitutional-law experts. I have some questions that I was hoping you could answer.
Me: I’m sorry, but X isn’t really my area of expertise. This sounds like it’s actually more of a [some area other than constitutional law] issue. I don’t know any more about it than your average lawyer.
At this point, the reporter reminds me about the tight deadline, and I offer up what little I know. Often, this suffices. Reporters on tight deadlines generally are not seeking stunning and original insights. Usually, they just want basic information that they can attribute to somebody credible. The title of “professor” apparently supplies that credibility. Being the best person to comment on an issue with nuance and perfect accuracy? That is much less salient.
Compounding this problem is the phenomenon whereby risk-averse and time-stressed journalists simply follow one another’s lead: Once I am quoted in a story about a particular legal issue, I am much more likely to get calls from other journalists reporting on the same issue. I might find myself quoted all over the place. This will not be because I am a leading expert—or even because I am necessarily correct. Rather, it will be because of my promptness in returning reporters’ calls and my willingness to be quoted.
Many scholars, like me, have spent their careers analyzing hypothetical problems and issues that we believed would become relevant in the real world. What kind of system would allow journalists—whose job is to translate experts’ knowledge into something concise and understandable—to identify and leverage this kind of scholarship in that magic moment when the news cycle maps onto our areas of specialty?
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My first suggestion is that journalists should do more to find the best sources on highly technical issues (Professor Right). They should be less willing to settle for the first person willing to provide a quote (Professor Right Now). One easy way to do this is to peruse Google Scholar (which, as the name implies, is a search engine that indexes scholarly literature) instead of just plain Google.
Experts can help fix the situation when the wrong phone rings. If journalists need more information than I can provide, they typically ask me to suggest other people to call. But I might not know off the top of my head who the real experts are. Indeed, if I only have a casual understanding of a technical question, chances are that I will have only a foggy (and maybe even biased) idea of who the best people to call might be. And so, for the reporter, a better question than “Who should I call?” is “Could you hop on your industry-specific digital channels”—which in my case would mean Westlaw or LEXIS—”and do a quick literature search, and tell me whose name comes up?”
This is a lot to ask of a busy academic, but it is worth it. Experts who are interested in helping journalists with technical queries (and if they were not interested, the conversation would have ended already) should have a few minutes to spare to identify the best sources. Even if I may not know the answer to a technical question, my general familiarity with the vocabulary used in my broader field will at least help me get the search terms right.
My second suggestion is that journalists be willing to use experts as reviewers instead of just sources. In my experience, journalists rarely will consult with an expert to ensure that their drafts are free of technical errors and misquotations (except at magazines, where fact-checkers are employed). In part, this is because a broadcast or newspaper reporter simply might not have enough time to make such a post-facto call. Or she might be worried that such self-review procedures, if institutionalized, may compromise her editorial independence.
But even something as basic as reading back an expert’s quotes can pay dividends. When experts feel misquoted, and thus mistreated, they will be more reluctant to talk to reporters in the future. I suspect that I am not the only academic with a no-go list of people and publications that have done me wrong. By simply letting experts see how they are about to be quoted, everyone will end up happier.
In some cases, even some kind of third-party informal peer review would help, such as with op-eds about highly technical issues. A recent piece in the Guardian by former U.S. Secretary of Labor Robert Reich supplies a case in point.
Reich argued that it is worthwhile for the House of Representatives to impeach (i.e., formally accuse) President Trump for various crimes, even if there is zero chance of the Senate convicting him and removing him from office. One key reason, according to Reich, is that the House’s action would bar any future president from pardoning Trump for those crimes: “If Trump is impeached by the House, he can never be pardoned for these crimes…Even if a subsequent president wanted to pardon Trump in the interest of, say, domestic tranquility, she could not.” Or as the Guardian headline and sub-headline put it: “Trump won’t lose his job—but the impeachment inquiry is still essential: The process . . . will render the president unpardonable.”
Reich is a smart guy, but he is not an expert on the pardon power. The Guardian must not have taken the time—it would not have required much—to have an expert review Reich’s piece for glaring technical errors. If they had, they’d have known that Reich got it wrong. Constitutional law features a lot of questions over which reasonable minds can differ. This is not one of them.
By publishing Reich’s piece unvetted and shooting an error out into the world, the Guardian made the world a dumber place. I sincerely doubt that Reich or the Guardian had that as their goal. And yet it happened. (And as of December 16, more than two weeks later, the piece is still sitting there on the Guardian site, apparently unmodified from its original form.) A Google Scholar search and a phone call could have prevented this in a matter of minutes.
While journalists and academics have different audiences and operate at different paces, they share an underlying commitment to getting things right. They already combine to do a tremendous amount of work educating the public. But they could do better. And with a few small tweaks, they would.
Professor Brian C. Kalt teaches at Michigan State University College of Law.
Featured image: Brian Kalt speaks with Michael Smerconish of CNN in October, 2017.